RAINEY vs. CAPPS, 22 Ala. 288

LIGON, J. The second affirmative charge of the court below forms the subject of the first assignment of error. That charge in effect affirms, that the relation of landlord and tenant may be presumed from the conduct of the parties in reference to each other, and in respect to the lands which are the subject of the rent; and that if the facts of the case are such, in the estimation of the jury, as to exclude every other reasonable hypothesis, then the law will imply that the relation of landlord and tenant does, in fact, exist.

We do not think there is any error in this charge, when it is taken, as it must be, in reference to all the proof in this case. Every other relation in life may be presumed from circumstances, and the conduct of the parties; and we are unable to perceive any good reason why that of landlord and tenant should form an exception to the rule. Marriage, filiation, agency and a number of others may all be so established. But these circumstances may be explained, or rebutted by evidence of facts which tend to show that such relations do not, in truth, exist.

The fact of renting for a single year may as well be established by circumstantial evidence as any other, and if the declarations, conduct, and acts of the parties are such, that they cannot be reasonably accounted for on any other hypothesis, the law will presume that the relation of landlord apd tenant exists between them. Let us examine the facts of this case in reference to this rule.

The testimony shows, that the plaintiff had rented the lands in controversy for the year 1850 to the defendant and Jones, to be used by them as a brick yard; that in the month of December of that year he made an agreement with them for the rent, for the same purposes, during the year 1851, stipulating the sum to be paid as rent money.

This agreement, being made on Sunday, is void for immorality, and consequently neither party can set it up as an agreement; yet it may well be looked to as a circumstance, with others, to account for their after conduct in relation to the possession of the premises after the expiration of the first term of rent. On the first of January, 1851, the defendant still occupies the premises, devoting them to the same use to which he and his partner had applied them the year before.

J ones withdraws from the business of brick making, but the defendant goes on to make all the arrangements necessary for their successful manufacture. The plaintiff lives within eight or nine hundred yards of the brick yard, at which Capps had been employed from the first of January until the last of March, digging up clay to make, and hauling poles and boards to shelter, some forty thousand bricks. In hauling the poles and boards he has the use of the plaintiff’s wagon, and this, under a loan from him.

Three months are thus spent by Capps in labor, directed to the manufacture of bricks, the use to which the lands had been previously applied. Can it be possible that these things conld have happened without the plaintiff’s knowledge ? And knowing them, is it at all probable that he would have permitted them, if the relation of landlord and tenant had not existed between the parties for that year? These facts tend strongly, if not conclusively, to prove the renting for the year 1851.

An(i when the conduct of the parties is referred to what was said by them in December of 1850, the tenancy and term of the defendant are too well es-tablisbed to be seriously doubted. He is not to be regarded as a tenant bolding over from bis former term, but as one wbo confessedly bolds for a new term of one year; for tbe agreement made on Sunday, tbougb void as such, may be looked to, in order to explain tbe character of tbe defendant’s possession, and to account for tbe subsequent conduct of both parties in relation to tbe premises in dispute.

It may be proved as tbe declarations or admissions of the plaintiff, which form a part of the res gesto, and, we apprehend, tbe fact that these declarations or admissions were made on Sunday, would not impair or affect their character as evidence. Considered alone, they would confer no legal rights on tbe defendant, but taken in connection with tbe subsequent conduct of tbe parties, and the other facts of the case, they tend to explain the nature of the defendant’s possession.

These facts proved, and tbe law will presume that tbe relation of landlord and tenant existed between the plaintiff and defendant for tbe year 1851. To enable the defendant to maintain his possession against the plaintiff, in a proceeding under tbe statute for unlawful detainer, it is not necessary that be should show all tbe terms of tbe contract of rent; it is sufficient, if be shows that he is in, as the tenant of the plaintiff, for a term which is unex-pered, when tbe proceeding against him is instituted.

If bis bolding for tbe entire term is, by tbe contract of lease, made to depend upon some act to be done by him before its commencement, or during its continuance, it is for tbe plaintiff to show it, and if be fail to do so, and to insist upon it, he will be held to have waived it.

If in this case tbe possession of the premises in dispute by the defendant for the year 1851 was, by tbe agreement under which be held, made to depend upon tbe fact, that Jones was to occupy them jointly with him, tbe plaintiff should have shown it by bis proof; and since be has failed to do so, we cannot presume it, but must conclude, from tbe fact that be permitted the defendant to remain in the possession alone for one fourth of tbe term, that such a stipulation did not exist; or if it did exist, be waived it.

It is needless to review, with particularity, tbe charges asked .by tbe plaintiff, and refused by tbe court. It is sufficient to say, that tbe three first are inapplicable to the case when all the proof is considered, and if given, would have been well calculated to mislead the jury; while the fourth is directly repugnant to our view of tbe law of the case. There was, therefore, no error in refusing them. And as we have seen that the charge given was unexceptionable, the judgment of the court below must be affirmed.